NLRB v. Brown

• Citation: 319 F.2d 7
• Decision Date: 17 June 1963
• Docket Number: No. 7089.,7089.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. John BROWN et al., Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

319 F.2d 7 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. John BROWN et al., Respondents.

No. 7089.

United States Court of Appeals Tenth Circuit.

June 17, 1963.

Melvin J. Welles, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost and Gary Green, Washington, D. C., with him on the brief), for petitioner.

William L. Keller, Dallas, Tex. (Clark, Reed & Clark, Robert L. Clark and Allen Butler, Dallas, Tex., with him on the brief), for respondents.

Joseph M. McLaughlin and Frederick A. Morgan, of McLaughlin & McLaughlin, Los Angeles, Cal., on the brief for Food Employers Council, Inc., California Ass'n of Employers, California Metal Trade Ass'n, Distributors Ass'n, Employers Council of Monterey County, Inc., Federated Employers of San Francisco, Federated Employers of the Bay Area, Peninsula Employers Council, Sacramento Valley Employers' Council, San Francisco Employers Council, San Francisco Retailers' Council, San Joaquin County Industrial Ass'n, and Valley Employers Ass'n, amici curiae.

Before MURRAH, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges.

LEWIS, Circuit Judge.

This case presents a single problem but one novel and important in the area of multi-employer bargaining under the National Labor Relations Act. The determinative issue, broadly stated, is whether the non-struck members of a multi-employer bargaining group who have locked out their employees following the initiation of an economic strike against one member of the bargaining group may operate with temporary replacements. The National Labor Relations Board, two members dissenting, found that the hiring of replacements by the non-struck employers rendered the lockout unlawful and hence violative of Secs. 8(a) (1) and 8(a) (3) of the Act. The present petition seeks enforcement of the Board order requiring certain remedial action upon the part of respondents.¹ The alleged unfair labor practices having occurred in Carlsbad, New Mexico, this court had admitted jurisdiction under Sec. 10(e) of the Act. 29 U.S.C.A. § 151 et seq.

The case arises from a factual background which leaves the determinative question free from the complication of disputed side issues of fact or law. Respondents are operators of seven retail food stores in Carlsbad, New Mexico, who have traditionally bargained upon a group basis² with the recognized bargaining agent of its clerical employees, Local 462 of the Clerks International Association. For many years the Union and respondents had enjoyed an amicable relationship and their collective bargaining procedures had resulted in agreements containing a union shop provision and in settling problems of wage increases and similar customary subjects of negotiation. On September 17, 1959, the Union gave notice of its desire to bargain on proposed changes in the then current contract which was due to expire shortly. The notice was not timely but respondents waived the technicality and agreed to bargain. The parties met on January 15, 1960, and both Union and respondents bargained in good faith at numerous sessions thereafter. By February 17, 1960, complete accord had been reached as to all provisions of the new contract except the amount and retroactivity of wage increases. Bargaining continued and at a session held March 2 the Union informed respondents that a strike vote had been taken and a strike authorized. No information was given as to when, how or against whom the threatened strike would be effectuated. Respondents replied that "they would consider a strike against any of them to be a strike against all of them."

On the morning of March 16 the Union struck a single store, Food Jet, Inc.³ Respondents immediately locked out their employees and informed them they would not be allowed to work for the duration of the strike against Food Jet, Inc. Each store operated on a limited basis during the strike and lockout. Food Jet, Inc., hired replacements for its striking employees; Safeway closed one store but operated another through the transfer of personnel from other areas; the other respondents remained open through the efforts of supervisory employees, relatives and temporary employees hired only for the duration of the controversy. Bargaining between the Union and respondents continued and resulted in an agreement reached on April 22, 1960. All regular employees were immediately returned to work with full status rights and benefits.

The decision of the Board that the act of respondents in hiring replacements is discriminatory in violation of Sec. 8(a) (3) and coercive in violation of Sec. 8(a) (1) is not premised upon evidentiary findings of unlawful motivation and hence does not fall within that class of case where an otherwise permissible course of conduct by an employer may be rendered unlawful by the specifics of subjective intent. N. L. R. B. v. James & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893; Associated Press v. N. L. R. B., 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953; Olin Matheson Chem. Corp. v. N. L. R. B., 352 U.S. 1020, 77 S.Ct. 587, 1 L.Ed.2d 562. And see Utah Plumbing & Heating Contractors Assn. v. N. L. R. B., 10 Cir., 294 F.2d 165. But lack of evidence of specific unlawful intent by an employer is not fatal to the decision of the Board if the conduct is such to carry its own indicia of intent sufficient to place the question within the orbit of the Board's prerogative of balancing the legitimate interests of labor and management in furtherance of the general purposes of the Act. N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308. The crux of the Board decision here is premised upon an ultimate finding of unlawful intent based upon indicia appearing from the uncontaminated course of conduct of respondents in hiring replacements. The Board expresses it thus:

"If the union could successfully strike one at a time, the other members of the employer unit would in ordinary circumstances continue operating to the severe economic damage of the struck member, and each in turn could be driven to the wall in the `whipsaw\'. For this reason, if one member is shut down by a strike, the others may also shut down, but they are not required to do so. If the struck member operates through replacements, no economic necessity exists for the other members shutting down. If in those circumstances they resort to a lock-out and hire replacements, it may be reasonably inferred that they do so not to protect the integrity of the employer unit, but for the purpose of inhibiting a lawful strike. In short, the lockout in these circumstances ceases to be `defensive\' and becomes `retaliatory\'."

Can it be reasonably inferred that the act of hiring replacements, per se, is "retaliatory" rather than "defensive"? We think it cannot and hold that the Board in so doing has misinterpreted and misapplied the principles set forth by the Supreme Court in N. L. R. B. v. Truck Drivers Union (Buffalo Linen), 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676, and N. L. R. B. v. Mackay Radio & Tel. Co. (Mackay), 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381.

In Buffalo Linen the Court gave its stamp of approval to the recognition by the Board that after the initiation of a whipsaw strike a threat of strike existed against the other employers which created an economic problem legally justifying a temporary lockout of employees. Basically we interpret Buffalo Linen as upholding the legitimacy of multi-employer bargaining and a recognition that to preserve the equality of such bargaining the employer may resort to self-help when the legitimate interests of employer and employees collide. Thus the efforts of the whipsaw strike to atomize the unity of the multi-employer group can be lawfully neutralized by the utilization of a...